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Always Review the Will with the Testator Prior to its Execution – Court Sends Important Message to Drafting Solicitors

the will must be executed in accordance with the requisite formalities;

the testator must have knowledge and approval of the contents of the Will; and

the testator must possess testamentary capacity at the time the Will is executed.

In the recent Ontario Superior Court decision of McLaughlin (Estate of) v. McLaughlin the second criteria was under consideration by the Court. Price J. was tasked with considering whether the testatrix in question had knowledge and approval of the contents of the Will.

The testatrix in question had decided to disinherit two of her children on the grounds that she had no relationship with them for a number of years. The residue of her estate was to be divided among her four remaining children.

During the planning process, the drafting solicitor recommended that the testatrix create multiple Wills for the purpose of passing certain assets by way of a secondary Will to avoid estate administration tax. Unfortunately, on the testator’s death it was discovered that the secondary Will contained several errors. Specifically, the revocation clause in the secondary Will revoked the primary Will. It also repeated certain bequests made in the primary Will and did not contain a residue clause.

On a prior application, the estate trustee sought the remedy of rectification in order to correct the deficiencies found in the secondary Will and the Court fixed the various mistakes. Although the Justice presiding on the rectification application was not asked to consider the validity of the secondary Will, after a full hearing on the matter, Lemon J. found as fact that the testatrix had never read the secondary Will and that it was not read to her by her solicitor.

The subject will challenge case was subsequently filed by one of the disappointed beneficiaries on the grounds that the testatrix lacked knowledge and approval of the contents of the Will. The applicant relied on the conclusion of Lemon J. on the prior rectification application that the testatrix had failed to review the Will with her drafting solicitor.

The respondents on the application maintained that “knowledge and approval” should not be determined based on whether the testatrix reviewed the Will. Instead, the respondents argued that the evidence concerning the deceased’s instructions to the solicitor were sufficient in the circumstances to demonstrate that she had knowledge and approval of the contents of the Will.

The argument was succinctly summarized by Price J. at paragraph 75 of the decision:

Mr. Rabinowitz’s principal argument as to why the secondary will should be found to be valid, or that there should be a trial to make that determination, is that although the reading of the will is the preferred practice, it is not the only way of satisfying the requirements for a will’s validity. He submits that where the testatrix gave instructions, and was confident that those instructions were carried out by the solicitor, and signed the will with that understanding, the rectified will is valid. He adds that many wills have been rectified in situations where it is clear that no one read the mistaken will. To invalidate a will in the present case, he argues, would be contrary to the results in those cases, in which the rectified wills were held to be valid.

Price J. reviewed the jurisprudence on point and noted that it was clear that a testator should read the will or alternatively have the will read over to him/her by the solicitor. Relying on Lemon J’s findings that the testatrix did not read the Will or have it read to her by her solicitor, Price J. found the secondary Will to be invalid on the basis that the testatrix lacked knowledge and approval of its contents.

This case serves as an important reminder to drafting solicitors to ensure that the testator either reads the Will or has the Will read to him/her at the signing meeting.

This update is provided as a courtesy for your general information and does not constitute legal advice. Every organization is unique and may also be subject to other laws not contemplated in this update. This update should not be relied on as a substitute for legal advice which necessarily must be specific to your organization, your objects, your operations, and your structure. If you have any questions about this information please contact one of the lawyers listed above.